Illinois Central Railroad v. Illinois Commerce Commission Brief and Argument for Appellee

    No.

IN  T H E

>uprane (Emtri of Illinois
N o v e m b e r  T e r m , A. D. 1953.

IL L IN O IS  C EN T R A L  R A ILR O A D ,
Appellant,

IL L IN O IS  COM M ERCE COM M ISSION, 
V E R A  JO H N SO N  a n d  N A T IO N A L  A S­
SO CIA TIO N  E O R  T H E  A D V A N CE­
M E N T  OE COLORED P E O PL E ’ a  N ot- 
f'or-P rofit C orporation ,

Appellees.

Appeal from  the Superior 
C ourt of Cook County, 
Illinois.

There H eard  on Appeal 
from  the Illinois Com­
merce Commission.

T r ia l  C ourt No.
52 S-10325.

H onorable
Ja m e s  J . M cD erm ott,

Judge Presiding.

BRIEF AND ARGUMENT FOR APPELLEE, ILLINOIS COMMERCE
COMMISSION.

L atham  Castle-,
A ttorney G eneral of the S tate  of Illinois,

160 N. La Salle Street, 
Chicago 1, Illinois,

Attorney for Appellee, 
Illinois Commerce Com­
mission.

W m . C. W in e s ,
R aymond S. S arnow ,
A. Z ola Groves,

A ssistan t A ttorneys G eneral,
Of Counsel.

THE GUNTHORP-WARREN PRINTING COMPANY, CHICAGO

Oral Argument Requested.



IN  T H E

&itprmi (Enurt n! Illinois
N o v e m b e r  T e r m , A. I). 1953.

IL L IN O IS  C EN T R A L  R A ILR O A D ,
A ppellant,

Appeal from  the Superior 
C ourt of Cook County, 
Illinois.

There H eard  on Appeal 
from  the Illinois Com­
merce Commission.

IL L IN O IS  COM M ERCE COM MISSION, 
V E R A  JO H N SO N  an d  N A T IO N A L  AS­
SO CIATION FO R  THE: A D V A N CE­
M E N T  OF COLORED PEOPLE!, a  N ot- 
fo r-P ro fit C orporation ,

Appellees.

T ria l C ourt No. 
52 S-10325.

H onorable
Jam es J . M cD erm ott, 

Judge Presiding.

BRIEF AND ARGUMENT FOR APPELLEE, ILLINOIS 
COMMERCE COMMISSION.

PROPOSITIONS RELIED ON FOR AFFIRMANCE.

1. The instant regulation was within the power of the 
Illinois Commerce Commission.

2. The instant regulation is reasonable.
3. The regulation is sustained by the evidence and is 

in accordance with the law.
4. The judgment of the trial court was correct and 

should be affirmed.



2

PROPOSITIONS OF LAW AND AUTHORITIES IN 
SUPPORT THEREOF.

Introductory Observation.

I.
THE ACTION OF THE ILLINOIS COMMERCE COMMISSION 

NEITHER CONFLICTS WITH NOR SUPPLEMENTS THE FED­
ERAL CONSTITUTION, THE INTERSTATE COMMERCE ACT 
OR ANY REGULATION PROMULGATED BY THAT COMMIS­
SION UNDER THAT ACT. THEREFORE THAT ACTION DOES 
NOT RUN AFOUL OF ANY FEDERAL LAW.

Interstate Commerce Act, 49 U. S. C. § 1, et seq. 

A.
The Interstate Commerce Act Does Not Preempt the Field 

of Racial Segregation in Interstate Commerce.
Mitchell v. United States, 313 U. S. 80.
Bob-Lo Excursion Company v. Michigan, 333 U. S. 

28.

B.
Congressional Silence Does Not Imply an Interdiction of 

the Application of Policies Embodied in State Civil 
Rights Acts and Regulations to the Embarkation of 
Passengers Upon Interstate Trains.

See Argument.



s

THE CUSTOM OF SEGREGATION AS TO INITIAL SEATING PRAC­
TICED BY APPELLANT AND FORBIDDEN BY THE INTER­
STATE COMMERCE COMMISSION IS CONTRARY TO THE PUB­
LIC POLICY OF ILLINOIS, THEREFORE A REGULATION FOR­
BIDDING THAT PRACTICE IS REASONABLE.

Illinois Civil Eights Act, 111. Eev. Stat. 1953, Ch. 
38, Par. 125.

II.

III.

SO FAR AS REGULATIONS OF THE ILLINOIS COMMERCE COM­
MISSION ARE CONCERNED, APPELLANT CAN BE CHARGED 
WITH RESPONSIBILITY FOR ACTIONS OF EMPLOYEES WHICH 
ARE CONTRARY TO SPECIFIC INSTRUCTIONS OF APPEL­
LANT. THIS WOULD BE SO EVEN IE SUCH ACTIONS WERE 
WITHOUT THE SCOPE OF THEIR EMPLOYMENT.

Wilkinson v. Hart’s Drive-In, Inc., 338 111. A. 210.



4

ARGUMENT.

INTRODUCTORY OBSERVATION.

Appellant’s argument is that Illinois may not command 
that passengers boarding interstate trains at an Illinois 
station be seated and otherwise accommodated without re­
gard to their race because, so appellant asserts, the mat­
ter of whether members of different races are to be af­
forded “ separate but equal accommodations” or the same 
accommodations, without separation even though the ac­
commodations be equal, is wholly within the domain of 
Congress.

If this argument is sound, then the instant regulation 
of the Illinois Commerce Commission is indeed invalid; but
so is every statute or regulation of a Southern state com­
manding segregation.

Should the United States Supreme Court sustain appel­
lant’s position, the instant regulation would go by the 
boards; but so would every “ Jim Crowe law” in the South 
go by the boards insofar as its enforcement trenches upon 
or touches interstate commerce.

There is no escape from this conclusion.
The result will be that until Congress acts directly or 

the Interstate Commerce Commission acts under its au­
thority, every railroad may adopt its own policy with re­
spect to seg*regation. So far as interstate commerce is 
concerned, every Jim Crowe law in the South and every 
Civil Rights Law in the North will be a dead letter.

This, so appellant argues, is the result which Congress 
has intended either by passing the Interstate Commerce 
Act (if that Act preempts the field) or by failing to pass



5

either a law forbidding or a law commanding racial segre­
gation on interstate carriers.

This important consideration should be in the minds 
of the Court and of all counsel in and parties to this im­
portant cause during its consideration and deliberation.

I.

THE ACTION OF THE ILLINOIS COMMERCE COMMISSION 
NEITHER CONFLICTS WITH NOR SUPPLEMENTS THE FED­
ERAL CONSTITUTION, THE INTERSTATE COMMERCE ACT OR 
ANY REGULATION PROMULGATED BY THAT COMMISSION 
UNDER THAT ACT. THEREFORE THAT ACTION DOES NOT 
RUN AFOUL OF ANY FEDERAL LAW.

Appellant’s argument, distilled to its essence, is that the 
Illinois Commerce Commission’s order in question is in­
valid because, so appellant argues, (1) the Interstate Com­
merce Act preempts the field of interstate commerce with 
respect to all matters of racial discrimination with respect 
to interstate commerce, wherefore State action is invalid 
whether it contradicts or supplements that exertion or, in 
the alternative, (2) if the Interstate Commerce Act does 
not preempt the field, then Congressional silence manifests 
the intention of the Congress that interstate carriers shall 
be free to devise their own rules with respect to segrega­
tion on the basis of race of passengers traveling in inter­
state commerce or operate with no rules at all on the 
subject.

Unless one or othe other of these alternative contentions 
be sound, appellant’s principal argument fails.



6

A.
The Interstate Commerce Act Does Not Preempt the Field 

of Racial Segregation in Interstate Commerce,

Mitchell v. United States, 313 U. S. 80, cited and relied 
upon by appellant, makes it crystal clear that the Supreme 
Court of the United States did not regard either the Inter­
state Commerce Commission Act or any regulation pro­
mulgated under that Act as touching the matter of segre­
gation. The Court did regard that Act as commanding 
equality of treatment under the famous doctrine of “ sep­
arate but equal privileges.” The Court said at page 94:

“ The question whether this was a doctrine forbidden 
by the interstate commerce is not a question of segre­
gation hut one of equality of treatment.” (Emphasis 
supplied.)

Had the Court regarded the Interstate Commerce Act as 
forbidding segregation even if members of all races were 
treated equally, it would have declared so simply and 
firmly. It has been importuned so to declare many times 
and yet has not done so.

That Congress has not denied efficacy to State’s civil 
rights measures, enacted directly or authorized by a state 
legislature, with respect to the loading and transporta­
tion of passengers on facilities of transit destined for 
points beyond the State was squarely and directly held in 
Boh-Lo Excursion Company v. Michigan, 333 U. S. 28. 
That case, also cited and discussed in the brief for the 
other appellees at page 7, is indeed pertinent.

In that case the Bob-Lo Excursion Company operated 
an excursion or ferry boat between Detroit, Michigan, and 
Bois Blanc Island in Ontario, Canada. It had a settled 
policy of not affording its facilities, which were largely 
recreational, to members of the Negro race. A Negro girl



7

sought but was denied transportation to the Canadian 
Island, denial being admittedly solely because of her race. 
Exactly the same argument was made by the Bob-Lo Com­
pany as is made in the case at bar. It was contended that 
the Commerce Clause of the Federal Constitution, Article 
I, Section 8, forbade, either ex proprio vigore or as imple­
mented by the Interstate Commerce Act and the Inter­
state Commerce Commission’s failure to adopt a regula­
tion, the application of the Michigan Civil Rights Act to 
passengers boarding an internationally destined vessel at 
a Michigan port. The Court said (333 U. S. at p. 40):

“* * * It is difficult to imagine what national
interest or policy, whether of securing uniformity 
in regulating commerce, affecting relations with for­
eign nations, or otherwise, could reasonably be found 
to be adversely affected by applying Michigan’s stat­
ute to these facts or to weigh her interest in doing so. 
Certainly there is no national interest which overrides 
the interest of Michigan to forbid the type of discrimi­
nation practiced here. And, in view7 of these facts, the 
ruling would be strange indeed, to come from this 
Court, that Michigan could not apply her long-settled 
policy against racial and creedal discrimination and 
this segment of foreign commerce, so peculiarly and 
almost exclusively affecting her people and institu­
tions. * # *”

Appellant commits a solecism when it argues that con­
gressional action with respect to interstate commerce 
necessarily, absolutely or categorically interdicts State 
action which is neither in conflict nor in concurrence with 
Federal action upon the same general topic.

The question is always one of the intention to be imputed 
to Congress by its action or inaction.

Finally, if there wrere the slightest merit in appellant’s 
contention, then every one of the recent cases involving 
alleged discrimination against Negroes in Southern states



8

in which the Court held that the Negro was afforded sep­
arate hut unequal facilities would have been promptly dis­
posed of on the ground that the purpose of the Interstate 
Commerce Act was to forbid all segregation as being dis­
crimination per se. The Supreme Court of the United 
States has thus far not taken that step.

The simple truth is that Congress cannot have intended 
to abrogate State Civil Rights acts by the adoption of the 
Interstate Commerce Act, particularly since appellant does 
not even suggest that it intended to abrogate Jim Crowe 
laws in the South.

B.

Congressional Silence Does Not Imply an Interdiction of 
the Application of Policies Embodied in State Civil 
Rights Acts and Regulations to the Embarkation of 
Passengers Upon Interstate Trains.

If we are sound in our demonstration under Sub-Point 
A that the Interstate Commerce Act does not preempt the 
field of racial segregation in interstate commerce, a fortiori 
no such inhibition against State action with respect to civil 
rights’ legislation and regulations may be inferred from 
the failure of Congress to pass a civil rights’ act or of the 
Interstate Commerce Commission to adopt a regulation 
forbidding segregation and discrimination.

Appellant’s contention amounts to the fact that the Con­
gress of the United States does not desire Illinois to have 
the authority to prevent what it deems to be invidious dis­
tinctions between persons solely upon the basis of their 
color.

The prohibition is rejected by thus clearly stating it.



9

THE CUSTOM OF SEGREGATION AS TO INITIAL SEATING PRAC­
TICED BY APPELLANT AND FORBIDDEN BY THE INTER­
STATE COMMERCE COMMISSION IS CONTRARY TO THE 
PUBLIC POLICY OF ILLINOIS. THEREFORE A REGULATION 
FORBIDDING THAT PRACTICE IS REASONABLE.

Section 1 of the Illinois Civil Eights’ Act (111. Eev. 
Stats. 1953, Ch. 38, par. 125) is in full as follows:

“ All persons within the jurisdiction of said State 
of Illinois shall be entitled to the full and equal enjoy­
ment of the accommodation, advantages, facilities and 
privileges of inns, restaurants, eating houses, hotels, 
soda fountains, soft drink parlors, taverns, road­
houses, barber shops, department stores, clothing 
stores, hat stores, shoe stores, bath rooms, restrooms, 
theaters, skating rinks, concerts, cafes, bicycle rinks, 
elevators, ice cream parlors or rooms, railroads, omni­
buses, busses, stages, aeroplanes, street cars, boats, 
funeral hearses and public conveyances on land, water 
or air, and all other places of public accommodations 
and amusement, subject only to the conditions and 
limitations established by laws and applicable alike 
to all citizens; nor shall there be any discrimination 
on account of race or color in the price to be charged 
and paid for lots or graves in any cemetery or place 
for burying the dead.”

Thus this regulation does nothing more than implement 
and effectuate the enacted will of the General Assembly. 

Appellant says at page 37 of its brief:
“ The Interstate 'Commission thereby recognizes that 

where a rule or practice of an interstate carrier con­
forms with the established usages, customs and tradi­
tions of the people, such rule or practice is reasonable 
in the absence of undue discrimination.”

But, as appellant’s brief demonstrates, the practice 
which the instant order forbids occurs only at Chicago.

II.



10

Once the passenger is seated in the seat assigned to him, he 
is free to move to and sit in any other part of the train 
that is vacant.

The Conrt will take judicial notice that in Chicago it is 
neither the “ established usage, custom and tradition” nor 
is it lawful to assign persons to seats in public conveyances 
according to their race or color.

Therefore, appellant’s own brief and argument prove 
that the instant requirement is reasonable.

The truth is that appellant’s policy of initial segregation 
is unlawful under the Illinois Civil Rights Act even without 
the instant regulation; for we have already demonstrated 
that a State may apply its Civil Rights Act to the em­
barkation of passengers in interstate or international 
commerce.

III.

SO FAR AS REGULATIONS OF THE ILLINOIS COMMERCE COM­
MISSION ARE CONCERNED, APPELLANT CAN BE CHARGED 
WITH RESPONSIBILITY FOR ACTIONS OF EMPLOYEES 
WHICH ARE CONTRARY TO SPECIFIC INSTRUCTIONS OF 
APPELLANT. THIS WOULD BE SO EVEN IF SUCH ACTIONS 
WERE WITHOUT THE SCOPE OF THEIR EMPLOYMENT.

Appellant cites the Appellate Court case of Wilkinson v. 
Hart’s Drive-In, Inc., 338 111. A. 210, not published in full, 
and reprints Mr. Justice Bristow’s opinion in that case as 
an Appendix to its brief.

But this case was concerned with a suit for damages 
and the imposition of a penalty upon an employer for the 
unauthorized actions of his servant. No one is liable to be 
amerced in civil damages or criminally punished for acts 
of a servant beyond the scope of his authority.

But the instant regulation imposes no penalty and 
awards no damages for past acts. It prohibits racial dis­



1 1

crimination among passengers on its trains and requires 
appellant to take all reasonably possible measures to see 
that its employees do not practice such discrimination.

The Commission may make regulations governing not 
only the conduct of agents acting within the scope of their 
authority, but of all railroad personnel, passengers, even 
trespassers, while they are on public conveyances. And 
it may require the utility to take reasonable measures to 
prevent the inhibited conduct. For instance, the Commis­
sion could pass a regulation forbidding expectoration or 
other unsanitary practice by persons upon railroad trains, 
whether passengers or employees, and if employees, 
whether expectoration would or would not be deemed to 
be within the scope of their authority. If the matter were 
not already covered by statute, it could command the 
utilities to take all reasonable measures to exclude intoxi­
cated persons from its trains. It would make no difference 
whether the intoxication were within or without the scope 
of an employee’s authority or indeed whether he were an 
employee at all.

Once it is appreciated that this is a regulation of the 
conduct of appellant’s business and of the persons on 
board its trains, it will be seen that scope of authority has 
nothing to do with the matter.



12

CONCLUSION.

For reasons apparent upon the record, found by the 
Commission and urged in this brief, it is respectfully sub­
mitted that the judgment in this case should be affirmed.

Respectfully submitted,
L a t h a m  C a s t l e ,

A ttorney G eneral of the S ta te  of Illinois,

W m . C. W in e s ,, 
R aymond S. S arnow ,

160 N. La Salle Street,
Chicago 1, Illinois,

Attorney for Appellee, 
Illinois Commerce Com­
mission.

A. Z ola Geoves,
A ssistan t A ttorneys General,

Of Counsel.